Attorney Christopher Adkins just released his new book entitled The Book on Divorce in North Carolina. The book is designed to help the reader understand family law issues such as divorce, property division, child custody, child support, spousal support and alimony. Questions are answered regarding marriage counseling, affairs and how they impact separation, the process of divorce, child custody orders and agreements, calculating child support, and separation agreements.
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In an ideal world, alimony payments would always be made on time, and be of help to the dependent spouse as they are intended to. Unfortunately, however, the real world can often be less than ideal. In some circumstances, for any number of reasons, one spouse will fail to make the required alimony payments to the other. While this is unfortunate, the law fortunately provides remedies for those spouses who deserve alimony and are not receiving it. If the parties initially determined alimony via a separation agreement, their initial attempts at enforcement will understandably be different than if alimony was determined by a court order. Separation agreements are generally governed by contract law, and as a result, those seeking to enforce a contract must file an enforcement action in civil court if the spouse is not following the terms of the contract, unless the agreement was previously incorporated into an enforceable court judgement. If a party attempts a contract enforcement action without success, they can file an initial action for alimony with the court, though this will of course take an additional amount of time and effort. It must be understood, however, that if your divorce has been processed before you file a court action for alimony, the court will lose jurisdiction to enter an award of alimony. A court action for alimony must be pending before your absolute divorce is entered. On the other hand, if a court initially entered the alimony determination, the parties may return to the court to seek enforcement of the order. After being notified that one spouse is significantly behind on his or her obligation to pay alimony, and after verifying that this is the case through proof presented by the dependent spouse, the court may order the amount to be paid in a lump sum to the dependent spouse. If the supporting spouse does not have enough cash to cover the delinquent amount, the court may potentially order the transfer of title to other property to the dependent spouse, might garnish the supporting spouse’s wages or bank account, or might place a lien against the supporting spouse’s real or personal property until the delinquency is satisfied. If a case is extreme enough, the court might find the non-paying spouse in contempt, which can result in additional fines and even jail time. Contact Adkins Law to speak with an experienced Huntersville divorce attorney about your alimony matter. One of our Huntersville divorce lawyers will arrange a family law consultation with you to discuss your strategies and options moving forward. Finding yourself in a difficult place in your marriage can be extremely difficult from an emotional perspective, particularly if you have been experiencing those difficulties for some time. Depending upon the nature of your relationship and your troubles, it is entirely understandable that you might feel lonely, frustrated, and without true companionship. No one wants to feel that way, and trying to get through the day while struggling with those feelings can understandably be stressful, draining, and discouraging. It is in these situations, where one or both spouses are struggling with emotional emptiness, that some find themselves more susceptible to becoming involved in affairs, or conversely, discover that their spouse is having an affair.
While affairs are ill-advised for any number of reasons, in North Carolina, they have very real and significant consequences from a legal perspective. In North Carolina, adultery is actually a misdemeanor offense under the criminal code, though it is highly unlikely that a prosecutor would bring criminal charges for an affair. What is far more likely, however, is that adultery, if proven, could significantly impact many aspects of a divorce case – not only from a financial perspective, but also with respect to child custody and other matters of great importance to the parties, not to mention the fact that the spouse harmed by the affair could potentially bring a lawsuit for significant damages under North Carolina law. How Evidence of an Affair Can Impact Your Divorce Case Ultimately, evidence of adultery can impact your divorce case in a variety of ways. Some of the most significant include:
If you need to speak with an experienced divorce attorney, please contact Adkins Law to arrange a consultation. For many, when contemplating divorce, it is only natural to focus on the emotions you may be feeling, particularly if you have been having difficulty in your marriage for some time. While this is understandable, it’s also important not to focus entirely on your emotions during this time. It’s also important to really think through the practical ways that life might change after a divorce. For many, this means making a thorough, honest assessment of your family’s financial situation.
A simple truth in today’s society is that many middle-class families spend as much, or in some cases, even a little more than they earn each month. Living paycheck to paycheck is a reality for a large portion of our population – and if you find yourself in that situation, you are certainly not alone. Divorce can have a significant effect on a family’s financial situation, as when a couple divorces, their expenses understandably increase. Beyond the cost of the divorce process itself, it is important to consider the fact that during separation and after divorce, instead of maintaining one household, the family is now maintaining two. Two mortgages, two sets of utility bills, two sets of property insurance bills- all of these things add up quickly – and though expenses have increased, the salary of each spouse often remains the same. While this doesn’t necessarily mean that divorce is the wrong choice for your family, it is certainly worth considering all of its implications. It may mean downsizing to a smaller home, reducing costly leisure activities, or that a stay-at-home spouse returns to work in order to make ends meet. Prior to deciding upon divorce, thinking these matters through is important. If you find yourself genuinely contemplating divorce, it is important to try your best to be financially savvy about the choices you make leading up to, and throughout the divorce process. Some of those steps can include:
Tracking your expenses, obtaining important financial documentation, and understanding your overall financial picture will be helpful in anticipating future expenses as you think of moving from one household to two. It could also serve as a helpful way for your attorney, and potentially a judge, to decide how best to divide assets and debts your divorce case, as well as to make important determinations on matters like alimony and child support, among others. It should also be noted that the financial aspects of the divorce process can be among the most stressful and the most contentious. Unfortunately, it is not unheard of for one spouse, out of anger or a desire for revenge to try to hurt or control the other financially. Even though it may seem highly unlikely to you that your spouse might ever behave in these ways, it is important to keep in mind that divorce can cause people to act in very uncharacteristic ways. Some spouses try to restrict the other spouse’s access to funds, empty bank accounts, or make expensive purchases that they would not otherwise make in an attempt to harm the other spouse. As a result, it is important to be prepared for this possibility, and to make sure that you have adequate access to funds prior to and throughout the divorce process, should you need them. Even if you have not definitively made the decision to proceed with divorce, it would still be a wise step to consult with a knowledgeable and experienced divorce attorney regarding how divorce might affect your financial situation, and how you can adequately prepare financially prior to beginning the process. If you suspect that your spouse may hide or deplete marital assets or otherwise try to control you from a financial perspective, it is important to also mention this to your attorney if you have one. Your attorney should be able to help advise you as to measures you can take to protect yourself financially during this time. Some people also choose to consult with a certified divorce financial analyst. These professionals specialize in reviewing a couple’s finances during the divorce process. A qualified analyst can help you to gain a more realistic picture of your expenses and your budget, in addition to planning for what your financial future might look like. If you would like to speak with a family law attorney regarding separation and divorce, please contact Adkins Law to arrange a consultation. Where child support is concerned, typically, both parents are in agreement that their children should continue to be supported and nurtured to every extent possible. While parents may disagree on exact dollar figures, generally, the desire to support the child is there. Alimony, however, can be quite a different scenario. Perhaps unsurprisingly, the idea of paying money to continue to support a spouse after the marriage relationship has ended can be an emotionally difficult concept for some. After all, if a marriage has ended, there are more than likely some bitter feelings on one level or another. On the other side of the coin, if your marriage has ended and you are the spouse who is seeking support, you may feel resentful, after giving up your career to stay at home and raise children, that your ex-spouse seems not to understand that sacrifice and willingly pay support. All of these feelings are understandable.
In the midst of all of these emotions, it can be helpful to try and focus on the facts – what the law requires, and when those laws apply. Doing so can often help reduce the emotional angst you may feel over the situation, and may help you to take a more practical look at your reality. It is not at all unusual to feel uncertain about how much alimony might be awarded in your particular case, or for how long the payments might be expected to last. This, too, is understandable. Gaining a basic understanding of the law and working closely with a knowledgeable and experienced attorney that you trust will go a long way toward relieving the stress and anxiety that you may feel over this aspect of your divorce. Typically, there are two types of alimony awards – temporary and permanent. Temporary alimony awards are often referred to as “post-separation support” and are a temporary, no-fault form of support that is usually awarded from the date of separation until either the entry of a final alimony award, or the dismissal of the alimony claim. As is the case with child support, the parties can agree to alimony amounts outside of court as part of their separation agreement. For many couples, if they are able to work cooperatively and amicably and agree on the terms of support, this is often preferable to a long, public, contentious court battle. In some cases, however, coming to an agreement on spousal support simply isn’t a realistic option, and in those cases, the court can make the determination if necessary. Unlike some states, North Carolina residents are not automatically entitled to alimony, nor is there a set formula for determining the exact amount of alimony that should be awarded. In North Carolina, the court must first make a determination as to whether one spouse is “substantially dependent” upon the other for his or her “maintenance and support”. Alimony might be awarded indefinitely, or for a specified period of time. It is typically, though not always the case, that if a marriage has lasted less than ten years, an alimony award will last for no more than the equivalent of half of the duration of the marriage. The court may also provide that alimony terminates in a variety of ways – either at the expiration of a predetermined time limit, when one party begins to cohabit with another, when one party remarries, or by resumption of marital relations. Ultimately, this, too, is in the discretion of the court. In determining the amount and duration of alimony payments, the court may consider evidence of several factors, including:
Generally, a court will have broad discretion in making an alimony determination, and may consider any factor “relevant to the economic circumstances” of the parties that it wishes. When it issues the alimony award (or declines to issue an award), the court must provide the parties with specific written reasons for its decision. Either spouse will have the opportunity to appeal the award if they wish, and if a dependent spouse is ultimately awarded alimony, they may seek recovery of their attorney fees. When alimony is awarded, the parties should be aware that it is typically deductible by the spouse who is paying, and reportable as income to the spouse who is receiving payments. When an alimony award is entered, the state which enters the award will usually have continuing jurisdiction over the award, and as a result, any modifications sought or enforcement efforts needed will be brought in that state as well. If you need to speak with an experienced family law attorney, please contact Adkins Law to arrange a consultation. The termination of alimony largely depends on the terms set forth regarding duration, and whether the alimony award is put in an unincorporated separation agreement (contract) or a court order (judgment, consent order, or incorporated separation agreement).
Alimony that is provided for in a court order, whether this is awarded in an order pursuant to trial, a consent order, or a separation agreement that has been approved by the court and incorporated into a divorce decree or other order is court ordered alimony. Thus even if you agree to alimony in a consensual, contractual separation agreement, if that separation agreement is later incorporated and made part of a divorce decree, it transforms from a contract to an order. Court ordered alimony, regardless of the terms of the separation agreement, terminates statutorily upon the death of either the supporting or the dependent spouse, and also upon the remarriage or cohabitation of the dependent spouse. N.C.G.S. 50-16.9(b). So, when there is an order for alimony in place, alimony terminates upon (1) death of either spouse, (2) remarriage of dependent spouse, OR (3) cohabitation of dependent spouse. Cohabitation is statutorily defined as … “cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.” To determine whether a couple has voluntarily assumed the rights, duties, and obligations of married people, the trial court must consider the totality of the circumstances. The primary policy in making cohabitation, not just remarriage, grounds for termination is the economic impact on the dependent spouse. It would not be fair, in other words, for a dependent spouse to be in and continue in a relationship where he or she may enjoy an economic impact from the relationship (i.e. new romantic interest contributes income) without the status of being married. A supporting spouse cannot automatically cease paying alimony due to the dependent spouse’s cohabitation or remarriage without a court order terminating the alimony. Examples of when a court has found that NO cohabitation exists:
The courts seem to hold that parties are cohabitating when they are in a (1) mutually exclusive dating and sexual relationship; (2) consistently, if not exclusively spend overnights together, or have a residence together; (3) hold themselves out in the same ways as a married couple would; (4) go on dates, travel together, keep clothes and toiletries at each other’s homes, and provide care (if applicable) for each other’s children; and (5) mix finances and contribute financially to each other, pay bills and contribute to household expenses together, and maintain joint bank accounts. When, on the other hand, an unincorporated separation agreement is involved, the terms of termination of alimony provided for in the contract dictate. Thus if no term in the unincorporated separation agreement provides for termination of alimony, it may continue indefinitely. A contractual support obligation of alimony in an unincorporated separation agreement, for example, that provided that alimony should be paid to the dependent spouse to support her while she obtained a college degree continued even after the death of the supporting spouse. The death of the supporting spouse did not end his obligation to support the dependent spouse until she graduated from college and his estate was required to provide the alimony payments to the dependent spouse. See White v. Graham, 72 N.C. App. 436, 325 S.E. 2d 497 (1985). To contrast against court ordered alimony, while cohabitation will result in the termination of a support order entered by a court, either as the result of a trial or by entry of a consent order, cohabitation will not terminate a support obligation arising from an unincorporated separation agreement unless so specified in the contract. See Jones v. Jones, 144 N.C. App. 595, 548 S.E. 2d 565 (2001). Unless provided otherwise in a separation agreement, however, reconciliation between parties who remain married may terminate an obligation to pay alimony, even if contracted for in an unincorporated separation agreement. Reconciliation, or the resumption of marital relations, is defined as the voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. N.C.G.S. 52-10.2. To reconcile, there must typically be substantial objective indicia of cohabitation. Reconciliation did not occur, for example, in a case where the husband and wife spend four hours a day, six days per week together, in the former marital home, having dinner together, visiting with the minor children, and having occasional sex together because the husband and wife maintained separate residences, did not share chores or household responsibilities, did not hold themselves out as husband and wife, did not indicate to others that their problems had been resolved, and did not indicate that they desired to terminate their separation. Fletcher v. Fletcher, 123 N.C. App. 744, 474 S.E. 2d 802 (1996). The Court of Appeals has held, on the other hand, that reconciliation has occurred when the husband and wife lived together for four months following the execution of a separation agreement, had sexual relations, filed a joint tax return, and held themselves out as husband and wife. See Schultz v. Schultz, 107 N.C. App. 366, 420 S.E.2d 186 (1992). In a nutshell, if alimony is court order, it will terminate upon (1) death of either party, (2) remarriage of dependent spouse, or (3) cohabitation of dependent spouse. If alimony is in an unincorporated separation agreement, it will terminate upon the terms of that contract, if ever; unless the parties remain married and resume marital relations. The history of spousal support (and child support), also called alimony or maintenance, can be traced back to the Code of Hammurabi, a Babylonian code of law dated back to 1754 BC, that declares that a man must provide sustenance to a woman who has borne him children. The Code provides that “If a man wishes to separate from a woman who has borne him children, or from his wife who has borne him children, then he shall give that wife her dowry, and a part of the usufruct of a field, garden, and property, so that she can rear her children. When she has brought up her children, a portion of all that is given to the children, equal as that of one son, shall be given to her. She may then marry the man of her heart.”
A similar law can be traced back to the Code of Justinian, which is the codification of Roman law ordered early in the 6th century by Justinian I, who was an Eastern Roman emperor in Constantinople. The Code of Justinian essentially provided that a gift of dowry or a prenuptial donation be held in escrow by the husband for the support of the wife in the event the marriage failed due to no fault of the wife. The law provided that there were five reasons a man could divorce his wife: i. Treason against the government; ii. She plotted against him; iii. Adultery (If there were no children, husband would keep the prenuptial donation and 1/3 of any property that wife possessed. If there were children, the prenuptial donation and property would be held for them when they became adults); iv. She bathed with strangers, or attended banquets, circuses, theaters, etc. against his wishes; or v. Wife remains away from home without husband’s knowledge or permission, unless she was visiting her parents. A wife, on the other hand, could divorce her husband for the following six reasons: i. Treason against the government; ii. He attempted to kill her or not warn her of a murder attempt by others; iii. He seeks to delivery her to another man for the purpose of committing adultery; iv. He accuses her of adultery but fails to prove her case; v. He entertained another woman in his wife’s home or he is frequently with another woman and refuses to stop after being warned by wife’s kinsmen; or vi. Husband is convicted of adultery (If there are children, wife retains prenuptial donation as alimony and gets portion to husband’s property to preserve for ownership of their children. If there are no children, portion of husband’s property to wife and portion of husband’s property to the government). In the United States, modern alimony traces its roots back to feudal times in England where title and control of a woman’s property vested with her husband upon their marriage. In exchange for taking and controlling her property, the husband became responsible for support the wife for the rest of her life. This obligation to provide support continued even if the parties divorced, unless the divorce was the fault of the wife. If the wife’s bad conduct or infidelity was the cause of the divorce, the wife would not be entitled to support from the husband. Over time, the law evolved to require the wife to prove that husband’s misconduct or infidelity was the cause of the divorce, and thus entitle her to alimony. The law in North Carolina before 1995 reflected this common law principal: that a dependent spouse seeking alimony must prove that the supporting spouse, whether husband or wife, committed marital fault before a court could consider their request for financial support. Additionally, then, regardless of whether the supporting spouse cheated, infidelity on behalf of the dependent spouse, before or after the date of separation, was a complete bar to receiving support. The current spousal support laws of postseparation support (temporary alimony) and alimony in North Carolina were enacted in 1995. The current laws have diminished the role of marital fault in spousal support and focus more on economic need. Postseparation support is support that a dependent spouse is entitled to if the court determines that the dependent spouse’s resources are not adequate to meet his or her reasonable needs, and the support spouse has the ability to pay. While a court may consider marital misconduct in making a determination of postseparation support, the impact of any marital misconduct on a potential postseparation support award is within the discretion of the judge. Infidelity, for example, does not automatically serve as a bar for a dependent spouse seeking postseparation support; rather it is a factor for a judge to consider in determining whether to grant an award of postseparation support. An award of postseparation support will continue until: i. the date specified in the postseparation support order; ii. the entry of an order awarding or denying alimony; iii. the dismissal of an alimony claim; iv. the entry of a judgment of absolute divorce if no claim of alimony is pending at the time the judgment of absolute divorce is entered; or v. modification of an order for postseparation support. It is important to understand that postseparation support is primarily designed to function as a means of securing temporary support for a dependent spouse in an expedited manner. The current alimony laws in North Carolina replaced a fault-based approach in making an award of alimony with a needs-based approach. With the exception of illicit sexual behavior, marital misconduct is one of many factors a judge may consider in determining whether alimony should be awarded, the amount of alimony, and the duration of the alimony award. As mentioned above, fault does control an award of alimony when there has been illicit sexual behavior. North Carolina defines illicit sexual behavior as acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual crimes voluntarily engaged in by a spouse with someone other than the other spouse. In at least one case, by way of example, penetration of a vagina by a finger was determined to be an act of illicit sexual behavior. See Romulus v. Romulus, 215 N.C. App. 495 (2011). Illicit sexual behavior impacts alimony in North Carolina as follows:
Thus while the law is shifting away from fault in determining alimony, in North Carolina, illicit sexual behavior may serve as a bar or guarantee of an award of alimony. If you need to speak with an experienced spousal support attorney, contact Adkins Law to arrange a consultation. In North Carolina, infidelity is one of the nine acts of marital misconduct defined under N.C.G.S. § 50-16.1A listed as “illicit sexual behavior.” North Carolina defines illicit sexual behavior as “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.20(4) [criminal sexual offenses], voluntarily engaged in by a spouse with someone other than the other spouse.”
What effect does cheating have on my marriage and separation? Cheating may serve to either guarantee or bar alimony for a spouse. In North Carolina, to have a claim for alimony, there must be a dependent / supporting relationship. This means that one spouse must be a dependent spouse, meaning they are “…actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.” The other spouse must be a supporting spouse, meaning they are “... a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support.” Without a dependent / supporting relationship, a court cannot make an award of alimony. The burden of proving dependency is on the spouse asserting the claim for alimony. It is important to note that even if a spouse is dependent, that dependent spouse is not entitled to an award of alimony if the other spouse does not have the ability to pay. A dependent wife, for example, would likely not be entitled to an award of alimony from a husband in bankruptcy whom does not have the ability to pay any amount of alimony at the time of the alimony hearing. See Bodie v. Bodie, 221 N.C. App. 29, 727 S.E. 2d 11 (2012). A finding of adultery on behalf of a party asserting a claim for alimony renders a dependency determination moot. Thus, a dependent spouse who has cheated is barred from receiving alimony; the court will not make a determination of whether the spouse is actually dependent. An actually substantially dependent spouse means that the spouse seeking an award of alimony must actually be dependent upon the other spouse to maintain the standard of living to which that spouse became accustomed to during the last several years before separation. The spouse must actually be unable to maintain the accustomed standard of living from his or her own means. Examples of cases where a spouse has not been found to be dependent:
Examples of cases where a spouse has been found to be dependent:
The Supreme Court in North Carolina has held, however, that just because one spouse is dependent, it does not automatically mean that the other spouse is support. See Williams. Also see Barrett v. Barrett, 140 N.C. App. 369, 536 S.E. 2d 642 (2000). A surplus of income over expenses is sufficient in and of itself to warrant a determination that a spouse is supporting. See Bodie. If a supporting spouse is determined to have cheated, the marital misconduct must have occurred during the marriage and prior to the date of separation. A court may consider incidents of post-separation marital misconduct only to the extent that it may corroborate evidence supporting other evidence that the marital misconduct occurred during the period of marriage and before the date of separation. The date of separation is the date that the parties actually began to live separate and apart with the intention of at least one party that the physical separation be permanent. See Romulus v. Romulus, 215 N.C. App. 495, 715 S.E. 2d 308 (2011). Parties must not only physically separate with the intent of at least one party to remain separate and apart, they must physically separate in a manner that indicates the cessation of cohabitation. A husband, for example, that came and went during the period of separation but continued to receive mail and maintain belongings at the marital residence and that, while he occasionally slept at his office, he returned home to do chores and take the children to activities was determined to not have separated from his wife. The parties were determined to not have legally separated. See Romulus. What counts as an act of illicit sexual behavior? As stated above, North Carolina defines illicit sexual behavior as acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined by N.C.G.S. § 14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse. In determining whether to award alimony, any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court. A spouse can prove that the other spouse engaged in illicit sexual behavior in a number of ways. Admission on behalf of the offending party is a very common manner of establishing proof. The term “sexual relations”, however, is not part of the statutory definition for illicit sexual behavior. In one North Carolina case, an admission by one spouse to the other spouse that he engaged in sexual relations did not establish illicit sexual behavior. See Romulus. To establish adultery, a party must show that the offending party had both the opportunity and inclination to engage in sexual intercourse. Wallace v. Wallace, 70 N.C. App. 458, 319 S.E. 2d 680 (1984). This means that without direct proof, a party may establish that sexual intercourse occurred by showing that they wanted to engage in sexual intercourse with another party, and had the actual opportunity to do so. An example would be a spouse who has sent text messages and made phone calls with another party, and has been observed inside the other party’s residence for a period of time. There may not be direct evidence, pictures or video of the sexual intercourse, but circumstantial evidence would show that they had the opportunity and inclination to engaged in sexual intercourse. What does this mean? In a nutshell, to have a claim for alimony, there must be a dependent / supporting relationship. One party must make substantially more income than the other party and the dependent party must rely on that income to maintain their lifestyle. If the dependent party has had an affair, they are barred from alimony; if a supporting party has had an affair, the dependent party is essentially guaranteed alimony; and if both parties have cheated, it is in the discretion of the court as to whether any award of alimony will be granted. If you need to speak with a family law attorney regarding spousal support and alimony, please contact Adkins Law to arrange a consultation. A premarital agreement, also known as a prenuptial agreement or prenup, is a written contract created by a (sometimes engaged) couple before they are set to be married. The contract typically outlines all of the property owned by each person; this can include cars, stock accounts, bank accounts, etc.. All items are specified in the written contract so that each person can determine what is to happen to that property, if the marriage were to ever end with divorce.
North Carolina has adopted the Uniform Premarital Agreement Act (UPAA). The UPAA allows parties to contract with respect to: 1. Division of Property - the division of property during marriage and upon divorce. 2. Alimony - Alimony and the waiver of alimony. Waiver of alimony agreements will be upheld unless doing so will cause the disadvantaged spouse to be eligible for public assistance. 3. Child Support - Child support arrangements will be upheld as long as they provide for the reasonable needs of the child(ren). There are some people that believe the rich and famous are the only ones to create prenups BUT this is not true. Prenups are merely used to protect the assets of each individual, avoid conflict in the event of divorce, avoid your significant others debts, as well as clarify finances with your significant other. Without a prenup the property is split as martial property in a divorce judgement. If you are thinking about creating a prenup with you and your significant other we can help to draft the document for you. Keep in mind that an attorney is not needed to create a valid pre-marital agreement. Failing to hire a family law attorney may, however, affect whether the agreement is fair, valid, and enforceable. Adkins Law is able to provide you with advice and assistance with the creation of a valid premarital agreement. Contact us to schedule a consultation with an experienced family law attorney. North Carolina General Statute § 50-13.7 states that “[A]n order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.”
NCGS 50-13.7 states that an order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested. In fact, the Court of Appeals has consistently held that “the trial court commit[s] reversible error by modifying child custody absent any finding of substantial change of circumstances affecting the welfare of the child.” Davis v. Davis, 748 S.E.2d 594 (N.C. App., 2013) (quoting Hibshman v. Hibshman, 212 N.C.App. 113, 121, 710 S.E.2d 438, 443 (2011)). Importantly, a finding of contempt will not lead to a modification of custody or visitation. As stated by our Court of Appeals in in Woncik v. Woncik, child custody “cannot be used as a tool to punish an uncooperative parent.” Only when the Court concludes that the interference with visitation was itself a “changed circumstance” is there merit to modify custody and/or visitation. Our Court of Appeals has stated that “A decree of custody is entitled to such stability as would end the vicious litigation so often accompanying such contests, unless it be found that some change of circumstances has occurred affecting the welfare of the child so as to require modification of the order. To hold otherwise would invite constant litigation by a dissatisfied party so as to keep the involved child constantly torn between parents and in a resulting state of turmoil and insecurity. This in itself would destroy the paramount aim of the court, that is, that the welfare of the child be promoted and subserved.” (Davis v. Davis, 748 SE2d 594 (N.C. App 2013) citing Shepherd v. Shepherd, 273 N.C. 71, 75, 159 S.E.2d 357, 361 (1968)). In Davis v. Davis, the trial court made findings that the parties had a dispute about the custodial schedule and Defendant lost his temper and inappropriately physically disciplined the minor child. The Court still found that there was not a substantial change of circumstances sufficient for the Court to grant Defendant’s motion to modify custody. (“The trial court did not find that defendant's “inappropriate [ ] discipline[ ]” of his daughter rose to the level of a substantial change in circumstances affecting the welfare of the children. The trial court also did not find that the scheduling disputes constitute a substantial change of circumstances. Therefore, the findings of fact and conclusions of law are insufficient to support its requirement that defendant obtain anger management counseling and its modifications of visitation. Accordingly, we vacate those portions of the trial court's order modifying visitation and ordering defendant to attend anger management classes and we reinstate the visitation schedule set out in the 2003 custody order.”) Davis v. Davis, 748 S.E.2d 594 (N.C. App., 2013). Thus, it is not necessarily easy to modify an existing order for child custody. To do so, you have to prove that a substantial change of circumstances have occurred that impact the minor child, and that it is now in the child’s best interests to have the custody schedule changed. A court cannot modify a child custody order just because you are dealing with a difficult person. That person may be difficult with you, and at the same time be a great parent for the child. If you have questions about modifying a child custody order and need to speak with an experienced child custody attorney, please click here to contact Adkins Law. |
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